KANSAS COLLECTION BOOKS

William G. Cutler's History of the State of Kansas


CHEROKEE COUNTY, Part 2

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THE CHEROKEE NEUTRAL LANDS.

Previous to 1827, the land now embraced in Cherokee and Crawford Counties belonged to the Osage Indians. During that year a treaty was made between the Osages and the United States Government, by the terms of which a strip fifty miles north and south by twenty-five miles east and west should be unoccupied by either white or red men, and should be a barrier between the two races, or a neutral land. Originally, therefore, it might appropriately have been called the Osage Neutral Land. But, on account of a treaty subsequently made between the Government and the Cherokee Indians the strip became known as the "Cherokee Neutral Lands."

These lands are located in the southeast part of Kansas, and are situated between the west line of the State of Missouri and the Osage Reservation, beginning at the southeast corner of the same, and running north along the east line of the Osage lands, fifty miles to the northeast corner thereof; thence east to the west line of the State of Missouri; thence with the said line south fifty miles; thence west to the place of beginning; estimated to contain 800,000 acres.

The Cherokee Indians became entitled to this tract of land in the following manner: As the white population, in the thirteen original States, increased to such an extent as to render the Indians therein uncomfortable and dissatisfied, it became necessary, by treaty, to provide for them new homes. The Cherokees, at that time, were living on reservations in Georgia, and were removed thence to Arkansas by the treaty of January 8, 1817, and the convention of February 27, 1819. A treaty was then made in 1828, between the United States and the Cherokee Nation, which had for its purpose the securing to the Cherokees " a permanent home, which should, under the most solemn guarantee of the United States, be and remain theirs forever-a home that should never, in all future time, be embarrassed by having extended around it lines, or placed over it the jurisdiction of a State or Territory-nor be pressed upon by the extension over it, in a way, of the limits of any existing State or Territory."

Under this treaty, the Cherokees exchanged the lands possessed by them in Arkansas, for 7,000,000 of acres of land in the Indian Territory, which was guaranteed to them forever; and, in addition to this tract of 7,000,000 acres, they had guaranteed to them a perpetual outlet west, and free and unmolested use of all the country west of the said tract.

By the treaty of February 14, 1833, the boundaries of the above tract were somewhat modified ; but otherwise the treaty of 1828 was left materially the same. But by the treaty of December 29. 1835, the lands of the Cherokees, in Georgia, which had not been ceded to the Government, were ceded, relinquished and conveyed to The Government of the United States for the sum of five millions of dollars. But the Cherokees, fearing that the 7,000,000 acres already ceded to them in the Indian Territory, would be inadequate to their future necessities, procured the incorporation into the treaty of the following clause: "The United States, in consideration of the sum of $500,000, hereby covenant and agree to convey to the said Indians and their descendant, by patent in fee simple, the following additional tract of land, situated between the State of Missouri and the Osage Reservation," etc., as before described.

This body of land so purchased remained the property of the Cherokees until 1866, when, on account of the encroachments upon them of white people many of whom had settled upon the land, they became desirous of selling it. A treaty was therefore made and concluded August 10, 1866, whereby the Cherokees ceded in trust to the United States this tract of land in the State of Kansas, which was sold to the Cherokees under the provisions of the second article of the treaty of 1835; also that strip of land ceded to them by the fourth article of said treaty, which is included in the State of Kansas. The Secretary of the Interior was made the agent of the Cherokees to sell the lands. He was authorized to advertise for sealed proposals, and to sell to the highest bidder for cash, in parcels not to exceed 160 acres each, at not less than $1.25 per acre; or to sell the whole body of land to any one responsible party for not less than $1 per acre, except such portions as were occupied at the time of the ratification of the treaty by actual settlers, and reserving for each actual settler not exceeding 160 acres.

Recognizing the difficulty of selling such a large body of land (800,000 acres) in parcels of 160 acres or less, and the length of time that would be required; and also recognizing the importance to the Cherokees of promptly realizing upon the whole body of the land, and of having all the money it might bring at interest, the Secretary of the Interior entered into a contract August 30, 1866, under the treaty of August 10, 1866, to sell the whole of the land in a body at $1 per acre. But this first contract of sale was set aside, for the reason that it was a sale for cash on time, whereas, by the terms of the treaty, the sale was to be for cash down. An attempt was then made to conclude a treaty, amending the treaty of 1866, to the extent of permitting the sale of these lands to Gen. Fremont for $1.25 per acre, or $1.000,000; but this supplemental treaty failed of ratification, and the land was then again placed on the market at $1 per acre. In June, 1867, James F. Joy, of Michigan, made a proposition through an agent to 0. H. Browning, Secretary of the Interior, to take the whole body of the neutral lands at $1 per acre. The Secretary declined the proposition, in order to give time for higher bids to be made; and, in order to secure such higher bids, advertised in the public journals for proposals, and giving notice of the final sale of the lands on October 1, 1867, to the highest bidder. Mr. Joy's offer was the only one made, and so he became the purchaser of the whole body of the neutral lands, except such parcels as had been taken by actual settlers previous to the treaty of August 10, 1866, and which parcels they were allowed to purchase at the appraised value of from $1.50 to $4 per acre.

The first sale had been made by Secretary Harlan to the American Emigrant Company, a corporation chartered under the laws of Connecticut, and, on the opinion and advice of Attorney General Stanberry, was held to be null and void. But the American Emigrant Company did not quietly submit to the opinion of the Attorney General, and, in consequence, a dispute arose between the company and James F. Joy, relative to their titles under their respective purchases. Mr. Joy, not desiring to be involved in a contest concerning the title to the lands, requested the Secretary of the Interior, 0. H. Browning, to cancel his contract, but the Secretary declined so to cancel it, upon the ground that he had done the best thing possible for the Cherokees, and that they would lose the lands if not sold. In 1868, the American Emigrant Company made a proposition to Mr. Joy, to assign, on certain conditions, their contract to him, to have it sanctioned by the Cherokees, and to have the transfer confirmed in a new treaty between the Cherokees and the Government of the United States. This supplemental treaty was concluded April 27, ratified June 6, and proclaimed June 10, 1868. By this treaty, the American Emigrant Company assigned their contract, and all their right, title, claim and interest in and to the said " Cherokee Neutral Lands" to James F. Joy, and Mr. Joy agreed to assume and conform to all the obligations of the company under their contract. Thus, Mr. Joy became the owner of the "Cherokee Neutral Lands," provided the Cherokee title to them was valid, and as such opened a " Cherokee Neutral Land Office" in Fort Scott December 18, 1868, for the convenience of such settlers as might desire to purchase and make entry of any portion of them. This office was placed in charge of Maj. John T. Cox. The price asked by Mr. Joy for his lands ranged from $2 to $5 per acre, average price $3.50 per acre.

At the time of the ceding of this tract to the United States, in trust, August 11, 1866, there had settled within its limits 1,031 families, or upward of 5,O00 individuals, the first settlement having been made in 1857. These settlers and all who had settled on the lands previous to June 10, 1868, were permitted to purchase their selections at an appraised valuation of from $1.50 to $4 per acre, or about $2 per acre less than those who might purchase under the Joy contract. A difficulty now arose in regard to the lands. Many of the settlers claimed that the Joy purchase was a swindle, asserted their right to settlement under the homestead and preemption laws, and demanded permission so to settle. They were encouraged to maintain their position by politicians of two classes, both those who had, and those who had no interest in either their rights or votes. Of the first class was the Hon. Sidney Clarke, Member of Congress from Kansas. The Legislature of Kansas, by a unanimous vote in the House and a vote of 18 to 5 in the Senate, passed concurrent resolutions setting forth their opinion, and the reasons therefor,[sic] that the Cherokees never had a legal title to the lands, and requesting Congress of the United States to pass such laws as might be necessary to fully secure the rights of the bonafide settlers (of whom there were then about twenty thousand) upon the lands, under the homestead and pre-emption laws. In order to obtain legislation satisfactory to themselves, the settlers employed William R. Laughlin as their agent to represent them in Washington and lay their claims before Congress. In answer to his inquiries, the Hon. William Lawrence, of Ohio, the Hon. George W. Julian, of Indiana, and the Hon. Benjamin F. Butler, of Massachusetts, all Members of Congress, formulated their opinion that under the treaty of December 29, 1835, the Cherokees acquired a right of occupancy only in the neutral lands, and not the right of alienation; and that the Cherokees having abandoned the lands, the lands reverted to the United States. This opinion was entertained by many Members of Congress, and much time was occupied in that body in attempting to legislate on the subject in order to carry it into practical effect. The principal argument employed in support of this opinion was that the treaty-making, power has no right to sell any of the property of the United States without the authority or consent of Congress. And it was claimed that the Cherokees, when they made a treaty at Talequa, October 7, 1861, with the Confederate States of America, by the terms of which they entered into an offensive and defensive alliance with that then power, and passed to and vested in that power all their right, title, interest, etc., in the said neutral lands, an abandonment of the lands was effected; and that therefore they could not cede them to the United States and could not therefore authorize a sale.

It was also claimed by the settlers that even if a sale were authorized by the treaty ceding the lands to the United States in trust for the purpose of sale, the terms of the treaty had not been complied with, inasmuch as the said treaty authorized the sale of all the Cherokee lands in Kansas, whereas the sale to Mr. Joy included only the neutral lands, leaving unsold the "Quapaw strip," or "Cherokee strip," a strip two and a half miles wide lying between the "neutral lands" and Osage lands on the north, and the Indian Territory on the south, and being a part of the seven million acre tract; and also, that the sale was void because, notwithstanding the proviso declared that nothing should prevent the Secretary from selling the land, yet there was no authority to sell.

On the other hand it was shown that the "Quapaw" or "Cherokee strip," was not ceded to the Government at all, that that part of the treaty which by the settlers was supposed to have reference to this strip, really applied to lands lying in the Indian Territory, fifty miles south of Kansas, and to other lands lying on the Marais des Cygnes, where this river crosses the State line of Missouri at the mouth of Mine Creek, on Double Creek and at Harmony. And it was argued that the treaty of 1835, which covenanted and agreed to convey to the said Indians and their descendants, by patent in fee simple, this neutral tract, which was supplemented by act of Congress in 1836, recognizing and approving the treaty by the appropriation of money to carry it into effect, and by the execution by the President of the United States, on December 31, 1838, of a patent, as contemplated by the treaty, containing these words: "To have and to hold the same, together with all the rights, privileges and appurtenances thereunto belonging to the said Cherokee Nation forever," did convey to the said Nation not only the right of occupancy, but also the right of alienation, or, in other words, a fee simple title to the lands, and that by a threefold title-by treaty, by act of Congress, and by patent. But the question of title had to be settled in the courts. This was done May 27, 1871, by the United States District Court, for the District of Kansas, deciding the whole matter in favor of the Missouri River. Fort Scott & Gulf Railroad Company, Mr. Joy having previously to this date transferred his interest in the lands to this company.

In the meantime a great deal of excitement and trouble had resulted from the opposition of the settlers to Mr. Joy's title. Anti-Joy Leagues were organized in many of the townships of Cherokee and Crawford counties, and a general organization was effected having for its object the defense of the settlers in their "rights." The Leaguers attempted to prevent the railroad from being built through the lands, and many quarrels ensued between the Leaguers and Anti-Leaguers. On the 6th of June, 1869, Jeremiah Murphy, a Leaguer, who was very zealous as such, and active in the persecution of Anti-Leaguers, was shot and killed by one of the latter. On the other hand, many of the Anti-Leaguers were driven from their homes, taking refuge in Fort Scott and other places. Among them were Capt. A. V. Peters, of Petersville, Dr. R. M. Elliott, of Millersburg and Mr. F. Fry, of Columbus, Cherokee County. The following official letter of the Spring Valley League forcibly illustrates the controlling animus of the Leaguers:

PETERSVILLE, June 2,1869.

MR. PETERS-Dear Sir: I presented your case before the league last night, who after consideration agreed to permit you to return, if you would sign an obligation to refrain from speaking, acting, writing or otherwise operating against the league, or objects that institution have in view. Said obligation is in my hand and the oath will be administered by me. Please call at my house immediately after your return.

By order of the Spring Valley League.

WILLIAM HAYHURST.

As further exhibiting the state of feeling of the settlers on these lands, the following "resolutions of Lincoln Township, Crawford County Anti-Joy League" are introduced:

1st. Resolved, That if John T. Cox, does establish an office in Crawford County, Kan., for the purpose of affording the settlers an opportunity of "proving up," as it is termed, under this contract, we will bold the same as a common nuisance, working hurt, and doing injury and annoying the people, and (the right of self-preservation being the paramount law of nature) we have the right and will abate such nuisance; PEACEABLY if we can - FORCIBLY if we must.

2d. Resolved, That any member of our League, who shall refuse to assist in abating said John T. Cox and office, shall have meted out to him, the like treatment, that we propose to John T. Cox.

3d. Resolved, That any person living in Lincoln Township, who shall after this date, "prove up," before said John T. Cox, under the Joy contract, shall have the same or like treatment administered to him.

4th. Resolved, That any one sympathizing with, aiding or abetting said John T. Cox in establishing or maintaining his NUISANCE, is no better than he is, and deserves the like treatment.

5th. Resolved, That any settler belonging to this league, who will remain firm, and not " prove up," shall be protected; and anyone "proving up," or buying said settler's claim shall never enjoy the land - that we pledge ourselves to HANG him higher than Haman, and without benefit of clergy.

6th. Resolved, That we mean action, and will put in force the above resolutions, and will make an example of the first person who violates any of said resolutions.

W. G. CUNNINGHAM,
J. S. ARMSWORTHY,
W. G. CLARK,
Committee.

Other similar resolutions were adopted by other leagues, and numerous violent proceedings, occurred under and in accordance with them. 0n the 8th of February, 1869, a body of men entered the town of Baxter Springs and proceeded to the land office. A squad went to the hotel, arrested Maj. John T. Cox and W. B. Shockley, who were in charge of the land office took them to the office and, under the penalty of hanging Maj. Cox, demanded that the papers of the office be given up within ten minutes, but neither Cox nor Shockley knew the combination of the lock. hence a delay was occasioned during which Sheriff Seright, Capt. Hyland and many of the citizens assembled with the determination to protect the safe and the papers. The leaders of the mob thereupon held a consultation, and decided to leave the town without further efforts to obtain the papers.

Meetings were held on the one side approving the course of State Senators and Representatives, and on the other side denouncing them, some of said Senators and Representatives taking sides with and others opposing the Leaguers.

The threats made were so numerous and so terrific that it became necessary to send troops into the troubled districts to preserve law and order, and to protect life and property. The following is the proclamation issued by Gov. Harvey in relation to the troubles.

TOPEKA, May 31,1869.

WHEREAS, Official information has been received at this office from the local authorities of the counties of Crawford and Cherokee, to the effect that the execution of law is impeded, and that personal security and private property are endangered by the acts, and the Public peace disturbed by the threats of lawless men in said counties;

Now, therefore, I, James M. Harvey, Governor of the State of Kansas, and charged by the Constitution to see that the laws are faithfully executed, do issue this my proclamation, enjoining each and all the people within the counties aforesaid, to yield due obedience to the officers of the law, to cease all acts of violence and lawlessness and to look to the properly constituted authorities for the redress of grievances and the determination of legal rights.

JAMES M. HARVEY.

This movement on the part of the Governor was both wise and merciful. Had it not been for the presence of the troops, many outrages that were not, would certainly have been, committed by the leaguers. To the leaguers the presence of the troops was especially galling. As showing the bitterness of feeling, and intensity of hatred entertained by some of the leaguers toward the authorities, for the "tyranny" exercised over them, the following extract from the Workingman's Journal, although not the sentiment of the paper itself, expresses a deep and widespread sentiment among the settlers.

If it is the intention of Gov. Harvey and President Grant to hold the neutral lands by military occupancy, we give them fair warning to commence the "recruiting business, and we dare them to send another soldier on these lands to overawe the settlers. Forbearance has ceased to be a virtue; and if to fall at the hands of tyrants is our fate the sooner it comes the less it will be dreaded.

The threat was mere bombast, and the opposition to Mr. Joy by many of the leading leaguers was toward the last at least mere empty show; for while they were threatening to hang such as might make contracts for lands with Mr. Joy's agents, they were themselves secretly making such contracts, and kept up the opposition mainly for the sake of obtaining office.

The first troops sent onto the neutral lands was a company of infantry, June 10, 1869. On the 5th of August following, three additional companies of infantry and a detachment of artillery equipped as cavalry were sent. On the 9th of October, the artillery was replaced by a company of cavalry. They were quartered at Fort Scott. One company of infantry was withdrawn early in 1870, and finally, in 1872, after Mr Joy's title to that portion of the neutral lands he had purchased, amounting to 670,000 acres, had been sustained, the remainder of the troops were from time to time withdrawn.

During the last five months of 1869, there were sold by the M. R., Ft. S. & G. R. R. Co. 117,752 acres of these neutral lands to the settlers, at an aggregate price of $518,634; and during the last seven months of 1870, 165,260 acres were sold, at an aggregate price of $1,186,764.

EARLY SETTLEMENTS.

The first attempt at a settlement within what is now Cherokee County was made in 1842, when a detachment of United States soldiers attempted to establish a fort on Spring River. The site selected by them was owned by John Rogers, a Cherokee Indian, who asked $4,000 W for the piece of land, but as $1,000 was the limit, beyond which the officer in command could not go, Fort Scott was finally selected. (See Bourbon County.)

The next settlement was made in what is now Shawnee Township, in 1856, by J. Pickerell.

The population of the county was returned in 1860 as 1,50l, but then Cherokee County included what had been included in the old county of McGee, extending northward to within about five miles of the northern boundary of Crawford County. During the years of the war, settlements were made, but not so rapidly as would otherwise have been the case had the Territory been public lands instead of Indian lands. But after the conclusion of the treaty between the Cherokee Nation and the United States Government, in 1866, notwithstanding the dispute between the settlers already there and James F. Joy over his title to the land, the increase in the number of the inhabitants in the county, up to 1870, was 9,537, and the total number, 11,038.

The first marriage license issued in the county was to Clark Johnson and Viena Young, who were married November 6,1867; but the first marriage was that of John N. Burton to Mary Wilson, December 5, 1866.

The first deed executed and recorded was dated July 2O, 1867; grantors, Nathan V. and Sarah A. Williams; grantee, Joseph A. Watson; property, northwest quarter of Section 9, Township 32, Range 25.

The Cherokee County Agricultural and Horticultural Society was organized November 30, 1869, at Brush Creek Schoolhouse, in Spring Valley Township. . W. Willey was elected President: H. C. Veatch, Vice President; J. Wallace, Secretary, and B. L. Devore, Treasurer. The first fair was held the next year, and an annual exhibition has since been held.

The Cherokee County Teachers' Institute held its first session October 20, 21 and 22, 1869, at Lowell. The most notable resolution passed by the institute was one favoring equal wages to male and female teachers.

[TOC] [part 3] [part 1] [Cutler's History]